Another day, and another sudden development in the European Copyright reform. As DisCo readers may remember, we explained in a September blog post that many European Member States (including Germany) were questioning the compatibility of the EU copyright proposal from the EU Commission with the e-Commerce Directive, a legal cornerstone of the European digital sector.

Today, Politico Europe leaked the (lengthy, technical) Opinion from the Legal Service of the European Council, vindicating the concerns expressed by these Member States. Member States were particularly concerned that the Copyright proposal (Article 13 and recital 38) was an unspoken attempt to rewrite the rules of the e-Commerce Directive and to redefine the notion of “communication to the public” (fundamental to the relationship between hyperlinking and copyright) through the backdoor. On those counts, the opinion is a victory for Member States – the Legal Service has harsh words for the Commission’s approach.

The Legal Service was expected, at the request of many Member States, to provide clarity on a proposal that many experts still struggle with. The lengthy, technical document comes with the requisite non-committal disclaimers and caveats. And ultimately, the opinion concludes that the Member States need to decide what the proposal actually should mean before any conclusive opinion can be delivered.

However, in the diplomatic language of the Council lawyers, the opinion also takes a direct swipe at the Commission and points Member States back to the Commission for answers.

European law, the Legal Service notes, must be drafted “in accordance with the principle of legal certainty, the rules set out in an act must ‘be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law’”.

That is a polite way of saying that the law needs to be understandable – this proposal seems to defeat even the Copyright Working Party of the Council and the Council Legal Service.

The proposed Article 13 and its accompanying recital, the Legal Service continues, does not “provid[e] any explanation as to the content of the enacting terms of the proposed Article 13, or any clarity on its relationship with the e-commerce Directive and [the right of communication to the public], or as to how that Article should be understood by the Member States and the stakeholders concerned, or even interpreted by the Court”.

In other words, even Member States don’t have the basic explanations to understand what the European Commission aims to achieve with its proposal (that nobody understands).

To conclude its indictment, the Legal Service adds that “the confusing terms in which [recital 38] is drafted raise various legitimate questions to which, regrettably, no clear answers are given”.

This translates as: the EU Member States are legitimate in their questioning of the Commission on the basic meaning of its proposal, and yet the Commission has refused to provide them with answers.

What next? The Legal Service does its best to address the substantive issues raised and to preserve the margin of maneuver of the Member States to decide what they see fit. But given the vagueness of the proposal, it can’t be blamed for keeping things open. It is perhaps worth noting that, in the Legal Service’s opinion, mandatory filtering across the board would not be legal – and so, concludes the Council, the proposal must surely mean something else than requiring systematic filtering. To be continued.

European Union

DisCo is dedicated to examining technology and policy at a global scale. Developments in the European Union play a considerable role in shaping both European and global technology markets. EU regulations related to copyright, competition, privacy, innovation, and trade all affect the international development of technology and tech markets.

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